Baroness Hughes of Stretford
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(12 years, 7 months ago)
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Baroness Benjamin
My Lords, further to what the noble Lord, Lord Ramsbotham, said, I would like to add play therapy to his list. Qualified play specialists who can work with the child and the parent—especially those having difficulties in relationships and attachment—really work. I have seen the results of that type of therapy, which is quite remarkable. I would like the Minister to take that into consideration when he is looking at this amendment.
Baroness Hughes of Stretford
My Lords, I shall make a few brief comments on these amendments. I start by commending the noble Lord, Lord Northbourne, who never misses an opportunity to raise the issue of parenting. I am terribly grateful that he does so because, with so many weighty matters often before this House, it is sometimes difficult to get those issues heard.
The noble Lord and other noble Lords, including the noble Lord, Lord Storey, and the noble Earl, Lord Listowel, were right when they said that we cannot overstate the importance of having good parents and the disadvantage to children when parents for one reason or another do not understand what good parenting is. For me, that involves having good involved fathers as well as mothers, as the noble Lord’s amendments make clear. Too often in our discourse about this, the default position is mothers, and we forget about fathers. As Minister for Children for four years, that was something I was very concerned about.
The point made by the noble Lord, Lord Eden, about communication from birth is profoundly important. Communication is the basis of good parenting because the enrichment children get from that kind of elaborative language, play, song and stories literally helps the brain to grow and helps the conceptual abilities of children to develop as well as helping with bonding.
I do not share some noble Lords’ opinion that somehow there has been a failure of moral fibre among the population and that today’s parents perhaps no longer care as much as our parents did. There have been changes, but some of those changes are due to changing social circumstances. The lack of proximity of grandmothers, grandfathers and the extended family to new parents means that sometimes people become parents without the support of their family who have been through that before, so they do not benefit from the wealth of that experience. I do not think this is to do with unplanned pregnancy or feckless parents. It has been demonstrated that many people new to parenting nowadays need support to understand what good parenting is. In my experience, and as the research shows, parents want that support and want to be good parents. That is why, as noble Lords have said, the provision of the opportunity to learn what that means is so crucial. Putting on the statute book that this will be available, without dictating the terms of that in detail, is an important thing to do.
The noble Lord, Lord Northbourne, rightly looked at the Childcare Act and said that it does not make provision for parenting education and support, and he is right. However, other legislation already on the statute book and in statutory regulations make provision for that, and it was enshrined in the legislation and regulations that define the Sure Start children's centre, as the noble Lord, Lord Storey, pointed out. When the regulations for what children’s centres should provide were being drawn up, they included a core offer that all children’s centres had to provide, as well as some optional things that centres could provide depending on local need. The provision of parenting support and parenting education classes is in the core offer. All children’s centres, particularly those in disadvantaged areas, have to provide parenting support, and have been doing so. There has been enormous progress in the amount of provision available and, as the noble Lord, Lord Storey, has said, many schools, particularly primary schools, now provide that as part of their core offer.
The problem for me, which I would be grateful if the Minister could address, is that because children’s centres are closing and many are having to reduce the services they provide because of lack of funds, the progress that has been made in making parenting education and support available is now in jeopardy. The Minister may well refer to the point raised by the noble Baroness, Lady Walmsley, that the Government have very recently announced some new money to promote parenting support, but I question the need for that at the same time as we are seeing some of that provision disappear because children’s centres are closing and being reduced. There is some conflict about where the Government stand in relation to ensuring the provision is available. It has been available for some time now in children’s centres but, as I say, that is now in jeopardy.
I very much support the amendments. The noble Lord, Lord Northbourne, said that he would not press them for a vote, but I think it is important for the Minister to make clear the Government’s position on this, particularly in relation to children’s centres. We will come to that issue in more detail in Amendment 5, but it is relevant here because this is predominantly where parenting support and education is currently available.
The Earl of Listowel
Before the noble Baroness sits down, can she say whether she thinks it important that there is a good, continuous institutional base for parenting training and development? I may have misremembered—
The Earl of Listowel
I thought it was the case that one could ask a brief question before someone sits down. I do apologise if that is wrong.
Baroness Hughes of Stretford
If noble Lords will accept the question put to me by the noble Earl, Lord Listowel, I will answer it. I think it is very important that there is an institutional base because one needs to develop a great deal of expertise around delivering parenting support.
There is a danger that anybody who has been a parent thinks they can give effective parenting support and education, and that is not the case. Children’s centres are required to provide only those programmes that have been extensively researched and validated to show that they have a positive impact. The Webster-Stratton approach and others have been so researched and the documentation on their effectiveness is in the public domain. It is not clear who will deliver the programmes the Government have put this extra money into, but it is very important that there is the training and delivery of really clear programmes that make a difference. Otherwise, if people think they can just get a group of parents together and advise them because they have been a parent and they know how it is done, I am afraid that can do more harm than good.
“( ) Regulations under subsections (1) of (2) may not, following their first use, specify a reduction in the total number of hours of early years provision available to each child that a local authority must secure free of charge.”
Baroness Hughes of Stretford
My Lords, Amendment 4 relates to the early education provision for three and four year-olds and now for two year-olds. Amendment 5 relates to Sure Start children’s centres, on which we have already briefly touched. As it stands, the clause makes it possible to include in statutory regulation the provision of free early years provision for children of two years of age from disadvantaged backgrounds. I want to start by saying how genuinely I welcome the extension of this provision for disadvantaged two year-olds. This was started by the previous Labour Government initially giving places to 12,000 two year-olds with a long-term goal of free places for all two year-olds, and building on the offer for three and four year-olds. I very much welcome the Government’s decision to continue that process.
As it stands, the Bill gives the Secretary of State new powers to decide, through regulation, how much early years provision should take place and when it must be made available. This amendment aims to ensure that any changes in the scope of that regulation-making power can be used only to increase provision above that which already exists, and not to reduce it. The amendment would mean that moves by any future Government to reduce early years entitlements would have to come before Parliament as a whole and could not simply be done through regulation alone. I tabled a similar but not identical amendment in Committee, and I was grateful for the advice of the Minister that its wording could have reduced the flexibility available for parents. That was not my intention.
I come back with this amendment not because I doubt the sincerity of the Minister or even the current Government in their commitment to continue and, if possible, build on this early years provision. Noble Lords have identified it as important; having children in early years education and childcare allows for opportunities on, for example, early intervention, assessment and parenting. I do not doubt the Government’s sincerity, but we do not know what a future Government might do. More importantly, there are two reasons why this provision should be included. First, families need and deserve the certainty that this provision will continue, and that if it changes it will only increase, without Parliament having to consider it again. That is important for families. Secondly, and relatedly, I would like to enshrine this provision, as far as possible, with the same or equivalent status as that of schooling from the age of five, because that would underline and would state powerfully the importance of early years provision. In other words, it is a provision that parents can expect will continue—and that Governments will continue to provide—for children aged two, three and four. It is for that reason that I hope, with the changes I have made to the amendment, that the Minister might accept it on this occasion.
I turn now to Amendment 5. We rehearsed the arguments about the importance of Sure Start briefly yesterday in Questions, and we debated it in Committee. I make no apology for returning to this but I realise, from the Minister’s earlier statement, that he is unlikely to accept this amendment. I nevertheless say that what the previous Government managed to do—and I think this Government are in support in principle—was establish a new framework of services for parents and the under-fives, through a national network of children’s centres, one in every locality. Not every centre has the same services; in disadvantaged areas there are more extensive services than in others. They are, however, a focus for the integration of services such as children’s social services, early education and health services. We aspire to early identification of children and families in difficulty in a universal, non-stigmatising service that will enable the centre to identify and reach out to families who need support, as well as offering other opportunities—such as play activities—that all families can take advantage of. Having established this national network, it would be a retrograde step to let it crumble. My concern is that it is crumbling.
I have brought forward this amendment to reinstate the qualification requirements which the Government have removed. As with teaching, we know that the quality of early years provision in particular is absolutely fundamental, and that the quality of the provision is fundamental to having a positive impact on children. It would also reinstate ring-fencing of the funding for Sure Start centres.
I quickly wrote down what the Minister has just stated: that he feels that the Government, through the early intervention grant, have provided sufficient money to sustain a national network of children’s centres. The early years intervention grant brings together funding not only for Sure Start children’s centres, but for 20-odd other services, including, for instance, the strategy to tackle teenage pregnancy. A whole range of things has been lumped into this grant. As a whole, the early intervention grant is 20 per cent less in real terms than those funding streams were when added together, so it will be a huge challenge for local authorities to sustain their children’s centres when the money now has to be spread across 21 different services and has been reduced by 22 per cent in real terms. I really must say to the Minister that while the money might sustain something of a network of children’s centres, it probably will not sustain the level of national network that we achieved with a children’s centre in every locality—one, as I have said, that is accessible, universal and non-stigmatising.
To make this a residual service only for the most disadvantaged areas misses the point of children’s centres and risks the fact that very disadvantaged families will not get to them. One of the reasons they were coming to children’s centres was that they were for everybody, not just for disadvantaged people. If it was just another arm of the statutory services, they kept away.
This is an important amendment, but I do not think for a moment that the Minister is going to accede to it. We have information now that we referred to yesterday: as a result of the reductions in funding, many centres are actually closing down and many more closures are in the pipeline. Further, centres that are staying open are reducing their service offer down to the absolute minimum. Looking to the future, given that this national network of centres had an enormous potential to make a huge difference to the next generation of young people, then of all the decisions the Government could have made in relation to funding priorities—I accept that they had to make them—sustaining this service at the level at which it was being provided ought to have been a priority. I hope—although I do not have much hope—that the Minister will also look sympathetically at Amendment 5. I beg to move.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his reply and have a few brief comments in response to his contribution and also that of the noble Baroness, Lady Walmsley.
On Amendment 4, I hope that the noble Baroness will not think me discourteous if I say that it will not sufficiently comfort me or many parents—as was my intention with the amendment—to say that it is in the coalition agreement and so will be all right. We have measures now in Parliament that were not in the coalition agreement and there are measures in the coalition agreement that have not—as yet, anyway—been put forward to Parliament. While I accept her personal commitment, and that of the Minister and indeed maybe of the current Government, what happens in the future is open to question. As I said, my intention was both to give parents some certainty and also try to give this provision to the under-fives an equivalent status to that of schooling. I am sorry that I have not been able to convince the Minister that those were sufficiently worthy objectives to accept my amendment.
On Amendment 5 and the children’s centres, I am grateful to the noble Baroness for her support on training. The comments about the improvement in the skill levels of people in early years are important but, certainly in part if not in very large measure, those improvements have been made. We have set the bar higher. A big issue about the quality of early years provision is the level of qualification and training that people get. We know that this is a largely unskilled, underpaid and female workforce. Over time, we need to bring up the levels of qualification and expertise. As I said, the improvements have been the result of setting the bar higher. Lowering the bar is a retrograde step, notwithstanding the comments that the Minister made about the requirements of people in a supervisory capacity.
On ring-fencing and whether this should have been a greater priority for the Government, we will have to beg to differ. I hope that the department will keep a close eye on what is happening in Sure Start children’s centres, both in terms of the numbers and what is being offered inside them. As I said, to risk this national network crumbling now would be another retrograde step which I am sure that the Minister would personally not support. However, in light of those comments, there is no point in my pressing this to divide the House. With that, I beg leave to withdraw Amendment 4.
Baroness Hughes of Stretford
We have had a good debate on this set of amendments and once again we have explored some of the items that we considered very thoughtfully in Grand Committee. The important point to make is that we already have legislation on this issue. It is legislation that has been crafted over many years, it is carefully balanced and it does many of the things that noble Lords around the House have been talking about in terms of balancing the rights of parents, teachers and pupils. It goes some way towards doing what my noble friend Lady Morris considered, which is safeguarding pupils. I accept that that has to be at the heart of this.
What we are confronted with is a Bill that extends powers which already exist, and we are trying to reflect back to the Government the fact that if they are going to extend those powers, they still have to maintain the balance between all the rights we have talked about. I understand the noble Lord’s points about the role of guidance and, as someone quite rightly pointed out, in previous Governments we provided it as well. But guidance has a role to expand on the core principles set out in legislation. I think that that is the issue at heart here. We have lost sight of the core principles in terms of searches, discipline and how all that is carried out. We are attempting to redress the balance.
The noble Lord talked about training and the guidance, which has come out relatively late. I point out to him that, on the issue of training, the guidance states:
“There is no legal requirement for a head teacher or authorised member of staff to be trained before undertaking a ‘without consent’ search”.
I hope that, when the guidance is worked on, that wording will be reflected on further and redrafted into a more positive statement about the need for training. I certainly feel that the view of the House is that it is important. However, the noble Lord has gone some way to reassuring us on the point.
I come back to the more fundamental points that we have been addressing: whether it is right for these searches to be carried out alone, whether a witness needs to be present, and to some extent the point raised by the noble Baroness, Lady Walmsley, about the need for same-sex searches. Our key point is that a witness is the key, core and fundamental protection of the rights both of the pupil and of the teacher. A number of noble Lords around the Chamber have talked about teachers being concerned about the extended role being placed upon them. They were fearful of their role and they are becoming more fearful of the expectations that are being laid on them. We have not heard of any pressure coming from teachers demanding this additional power. If anything, they are saying that they do not want the extra burden and responsibility. The issue of having a witness present is absolutely fundamental, and I shall return to it in a moment.
Finally, Amendment 10 concerns school rules. Again, the debate around the Chamber has highlighted how easy it is, if we are not careful, for rules from school to school to vary quite considerably. We have already heard that the rules for maintained schools may be different from independent schools, which in turn could be different from academies. Where is all this going in terms of a kind of consensus about what is right and what is wrong? All we have asked for is that the Secretary of State should issue guidance to specify what would be prohibited items in the broadest sense so that parents throughout the country would have confidence that there was some unanimity across different schools.
Our position is this. On Amendment 6, the noble Lord has gone some way to reassure us, and therefore I shall withdraw it shortly. But in doing so I give notice that we intend to divide the House on Amendment 7, which relates to the issue of a witness being present at all times. We think that that is a fundamental, core principle that should be on the face of the Bill. I beg leave to withdraw Amendment 6.
Baroness Warnock
My Lords, I strongly support the amendment introduced by my noble friend Lord Low. There is often a tendency to treat SEN as if it contains only one group of people. I have had many letters from parents who find that the school may think that anybody is an expert in their child’s particular special need as long as they are an expert in SEN. That is far from true. This is particularly noticeable in the case of autistic children where understanding the management of autism, as far as it can be managed particularly in the school context, is a very specialist subject. That is why so many autistic children are excluded from school. It is of enormous importance that the SEN expert, who must quite properly be on the panel, should be an expert in the relevant disability.
It is also important that one should not think of SEN as completely contained in those children who have statements. As my noble friend said, at least 18 per cent of people with disabilities do not have a statement. Long ago, this 18 per cent without a statement came to be known as the “Warnock children” because I was particularly interested in them. They were often neglected because their disability was not serious enough or perhaps did not seem so. Therefore the local authority had no statutory duty to provide for them.
Exclusions, which I am sure all noble Lords agree should be avoided as much as possible, need to be carefully scrutinised for any child who is on the lower grading of disability. This often involves children with behavioural and emotional difficulties, who are likely to behave badly at school and incur either temporary or ultimately permanent exclusion. I welcome the improvements that have been made and I think that things are going in the right direction. However, these questions about children who do not have statements and about the choice of relevant expertise on the panel are of the greatest importance.
Baroness Hughes of Stretford
My Lords, I speak to Amendments 17, 19, 21 and 29, and also support Amendment 15 and Amendments 24 to 28 that the noble Lord, Lord Low, and my noble friend Lord Touhig have spoken to. In particular, I agree with the noble Lord, Lord Low, that Amendments 24 to 28 have, in quite large measure, been addressed by the guidance that we received from the Minister yesterday. I am pleased that, certainly at the stage of the review panel, which is the final stage in the process of reviewing an appeal, the Government have seen fit to make provision for most of the things demanded in Amendments 24 to 28: for a special needs expert to give their views, for the parents to have a right to that, for the parents to be told about that, and so on. That is all welcome.
However, the Government guidance does not address Amendment 15, which is similar in intent to our Amendment 17. They both seek to ask—the noble Baroness, Lady Warnock, just alluded to it—whether we can make sure that relevant information, particularly about a child’s special educational needs and especially unidentified needs, has been brought into the process not at the final stage of the review panel but at the very earliest stage of the head teacher’s decision and particularly at the point at which the responsible body—that is, the governors of the school—has been asked by parents to review that decision.
Amendments 17 and 19, in particular, concern the exclusion of pupils who have unidentified special needs. There is a principle of natural justice underlying the amendments: that where a child is at risk of exclusion, the decision-maker should have the full facts about any special educational needs—not at the final stage, as I say, but at the earliest possible stage. This is particularly important where needs have not been identified, so these amendments would ensure that children with special educational needs but whose needs have not been adequately addressed by their schools are not permanently excluded. In Amendment 17, that is by ensuring that when “the responsible body”—that is, the governing body—is making the initial decision on whether to affirm the head teacher's decision, it must,
“consider a report … from the special … needs co-ordinator”,
or expert. In Amendment 19, it is by ensuring that when the review panel is considering the case at the final stage, it has a report.
I accept that, alongside Amendments 24 to 28, Amendment 19 has largely been covered by the Government, which is great. Yet in relation to Amendments 15 and 17, while the Minister’s letter accompanying that guidance says that the responsible body as well as the review panel should take account of any relevant information in relation to pupils’ special educational needs when reviewing the decision to exclude there is, first, no requirement for the head teacher to take cognisance of that information when taking the initial decision to exclude and, at the level of the governing body in deciding whether to review that decision there is, secondly, no right for the parent to have a special needs expert. The guidance refers simply to the governing body having information on the child's special educational needs already held by the school. It does not precisely cover the circumstances where such needs have not been identified because it simply refers to the school making available to the governing body information that it already has, not seeking a wider assessment of the special educational needs that the child may have.
Surely it is better to have this expert view early in the process so that an exclusion may be prevented rather than only at the final stage, when a review panel is deciding whether to endorse the decision. That is particularly so given that the review panel does not, according to the Government's proposals, have the power to reinstate the pupil. I very much support Amendment 15 but if the noble Lord, Lord Low, decides not to press that amendment then I give notice that I would like to take the opinion of the House on Amendment 17, which would similarly bring the special needs expert person into the process earlier on to prevent the exclusions.
Amendment 21 would empower the exclusion review panels to require the schools to reinstate a pupil if they are satisfied that that is the right thing to do. We had a long debate about this in Grand Committee, when there was a very strong view across the Committee that this was a principle of natural justice—that if a decision made against someone is later found to have been flawed, that decision should not stand. Yet that principle is not upheld under the clause and the right to insist on the reinstatement of an unfairly excluded child is withdrawn.
In Grand Committee the noble Baroness, Lady Walmsley, among others, expressed similar concerns. It is rather surprising that the only amendment in relation to the power to reinstate has come from me and my noble friends, because I thought that the consensus of opinion in Committee was in support of that. I accept that heads may be in a difficult position if a panel were to reinstate, but we also had a sensitive discussion in Grand Committee about what should prevail in those circumstances. I think we agreed that given the impact on the child of having a decision by the review panel to reinstate, that is a far better outcome for the child, even if after discussion the child goes to another placement because of all the issues that have preceded that decision. It gives the child some rights in relation to flawed decisions which, at the moment, are not contained in the Bill.
Amendment 29, briefly, would require,
“a school to retain an excluded pupil”,
on its school roll,
“and to fund the pupil’s education until the pupil is no longer of compulsory … age”.
Our intention here was that the schools should retain financial responsibility but, more importantly, the responsibility for progressing that child and for their final outcomes in whatever alternative provision they went into. The intention was twofold: first, to give schools the opportunity to have a second thought before making the final decision on exclusion, knowing that they would retain responsibility for a child, as a kind of check and balance in that system and, secondly, to make sure that the school has some responsibility for the final outcomes for the child—even if the child goes elsewhere.
The Minister has sent me a letter and the department has issued a press notice on the pilots that the Secretary of State has announced, which are not the same as those proposed in our amendment but go some way to exploring the potential for schools to have responsibility for arranging an alternative decision. It is not the same as giving schools the responsibility of keeping a child on the roll. However, it involves the schools having the finance that goes with arranging alternative provision and the responsibility for ensuring the equality of that provision and for staying in touch, albeit more informally, with what happens to that child. I welcome that provision and I look forward to hearing the outcome of those pilots.
Although there is some movement in relation to Amendments 19 and 29 in the guidance, if the noble Lord, Lord Low, does not press his amendment to a vote, I would like to take the view of the House on Amendment 17.
Lord Sutherland of Houndwood
My Lords, I welcome the movement that there has been on the principles of Amendments 19 and 29 because they are sensible principles. The moves of the Government go some way to reassuring me there but I want to comment on Amendment 21, which is clearly a crux amendment in terms of overturning the powers that are specifically included under subsection (1) of the proposed new clause in Clause 4(2)—the power of a,
“head teacher of a maintained school”,
to exclude permanently.
I want to retain that power and I do not wish to give the review panel the powers to overturn it. The reason I give for that is that it would produce a virtually impossible situation for both the school and the pupil. The case would be a cause célèbre by the time it came to this stage and it would not do either any good. There is sufficient safeguard in the Bill for the school to be very careful before it moves to such an extreme conclusion. The safeguards come in subsection (4)(c) of the proposed new clause in Clause 4(2), where it is hinted—indeed, it is said explicitly at one point—that the review panel may consider the procedures of the responsible body as flawed,
“in the light of the principles applicable on application for judicial review”.
That seems a very serious warning to a responsible body, be it a head teacher or a governing body, before making such a final judgment.
I would hope that that would be sufficient to deter bodies from, not frivolously, but perhaps injudiciously or in some weakening sense, causing an individual to be excluded unnecessarily. The suggestion that the school would be considered responsible for the financial provision for the future education of that individual is a fair warning to the school. Even if the higher motive did not prevail, the lower one might well do so in the school taking responsibility for what could be a very expensive course of education. I beg to differ on Amendment 21.
Baroness Walmsley
My Lords, I rise to move Amendment 16 and to speak to all the other amendments in the group, apart from Amendment 31, because they are also in my name. As we have heard, Clause 4 proposes to change the arrangements for hearing appeals against permanent exclusions from school. Many issues arise in the case of the high proportion of children in this situation who have special needs. Clearly, a driver for this legislation has been those head teachers who have asked the Government to change the system because they have been subjected to what they believe are bad decisions and have lost confidence in it. In such a situation the logical thing is to change a bad system to a better system. Instead, I believe the Government are in danger of changing a bad system into an inferior system.
In Committee, I asked the Government to consider allowing all exclusion appeals to go to the First-tier Tribunal, where provision for children with special needs is appealed. That would mean changing to a system which one of my advisers said is light years better than what we have now, with a qualified solicitor of seven years’ experience in the chair. I hope that my noble friend the Minister will confirm on the record that the Government have agreed to pilot this idea and test it out. I am grateful for that, which is why I have not laid that amendment again but instead have laid this group of amendments which seeks to improve the Government's independent review panels in the mean time. However, I hope that my noble friend will confirm that the pilot will be a proper one and give the First-tier Tribunal the same decision-making powers that appeals panels have now, including to reinstate a child if, in its vast experience, it considers that an injustice has taken place, bearing in mind, as always, the best interests of the other children in the school as well as those of the excluded child.
Another idea has been put to me only in the past few days. I wonder whether the Government might consider whether the magistrates’ courts might have a role which does not suggest that either party has committed a criminal offence. They are used to dealing with young people and they understand how to judge difficult cases, so that is an idea worth considering while we are piloting alternatives.
Amendment 16 requires that a child has an opportunity to make his own representations to the IRP and receives all relevant information to help him to do so. I hope that this will also be allowed in the First-tier Tribunal pilot. It is now becoming good practice for children to be able to represent themselves in all sorts of spheres, according to Article 12 of the UNCRC, including in SEND tribunals. It would make sense for them to be able to do it here too.
Amendment 20 is about the training of panel members, which should be provided by accredited independent providers and cover all relevant issues, as outlined in my amendment. Amendment 30 defines what is meant by independent and accredited providers. Amendment 22 would ensure that the panel understands whether it was being asked to consider a case that should really be before SEND and then be able to refer that case to that First-tier Tribunal instead. Amendment 23 seeks to support the head teacher in a situation where the independent review panel has asked the school to reinstate the child, perhaps because it feels that exclusion was too harsh a punishment for the offence. Under the legislation, of course, we know that it cannot insist. However, in such a situation the head teacher may wish to put a condition on accepting the child back and involve the parents in ensuring the child’s future good behaviour in the interests of the other pupils in the school. That is why I have suggested that a parenting contract or parenting order might be a good idea—something else in the head teacher’s armoury.
Finally, Amendment 32 would provide a last resort for the child and his parent if he believed that the IRP had erred on a point of law. It would allow an appeal to an Upper Tribunal, rather than judicial review. An Upper Tribunal is a judicial body with expertise in this area. SEN cases already go to it and it consists of members of the senior judiciary. They look at a case on the basis of error of law or fact, so moving beyond the process under which the decision was taken, which is all that a judicial review can look at. The Upper Tribunal can look at a panel decision and remake it, or refer it back to the original panel.
Of course, we all hope that, if properly trained, the independent review panels would make sound decisions and that is what this clause seeks to ensure. However, no one is infallible, so this is a failsafe natural justice mechanism which I hope commends itself to my noble friend the Minister. I beg to move.
Baroness Hughes of Stretford
My Lords, I want to briefly speak to Amendment 31 in this group. This is a very simple amendment which would ensure that Clause 4 on exclusions and all that we have been talking about would apply also to academies. As the clause stands, it says:
“Regulations may make provision for this section and for regulations made under this section to apply, with prescribed modifications, in relation to Academies or a description of Academy”.
This amendment simply changes the “may” to “must”, so that the exclusions legislation and the guidance covered in Clause 4 apply equally to all state-funded schools. We cannot see any reason why these provisions, especially with the movement already made by the Government in guidance, should not apply also to academies. Why should the parents of children at academies not have the right to a special needs expert at the review panel? Why should the detailed requirements now in the guidance on the head teacher at the decision-making stage, on the governing body and on the review panel not also apply to the arrangements in academies?
Apart from the point of principle, there is a very practical reason why we need to do this. It is clear that the Government, in clauses we will discuss later—with presumptions that all new schools will be academies, with powers for the Secretary of State to intervene in schools that are in difficulties so that they immediately become academies—intend, as they have made clear, that as many schools as possible, if not all schools, should become academies in the fullness of time. If that is to happen, if we have many more schools becoming academies, I cannot see why we are discussing this legislation. If it does not apply to academies, it raises the question of the point of the guidance—it will become redundant if all schools become academies and this clause does not apply to academies. So we have very practical reasons for making sure, right at the outset, that this applies to all state-funded schools, including academies. I hope that the Minister will accept this amendment and I look forward to his response.
Lord Hill of Oareford
My Lords, let me start by talking about supporting pupils to participate appropriately in the exclusion process. I very much agree that that is important. The guidance on exclusions, which I have circulated, makes clear our view that pupils should be actively supported to participate at all stages of the process. In strengthening this aspect of the guidance we sought the views of the Children’s Rights Alliance for England. In response to its suggestions, the guidance now sets out: first, that head teachers should take steps to allow a pupil to present his case before an exclusion decision is made and take account of significant contributory factors, such as bereavement or bullying, that come to light after an incident of poor behaviour; secondly, that consideration should be given to how to enable and encourage the excluded pupil to participate in governing body reviews and independent review panels; and, thirdly, that independent review panels should be conducted in a non-threatening and non-adversarial manner. I am happy to discuss this draft guidance with my noble friend Lady Walmsley and will consider any suggestions that she may have.
I also agree with her point that schools should be able to agree with a parent clear measures to address poor behaviour when a pupil returns to school following exclusion. She talked about parenting orders and contracts. In fact, schools do have the power to agree a parenting contract or to apply for a parenting order, so I hope she will feel reassured that that is possible as things stand.
The noble Baroness, Lady Jones, raised the question of how the new exclusions process will be applied to academies. I can reassure noble Lords that the requirements will be the same on all state-funded schools, including academies and free schools. We have already updated academy funding agreements to reflect the changes proposed in the Bill, but the Bill also allows us to apply requirements that are placed on maintained schools equally on academies through regulations. I hope that that reassures the noble Baroness. As for training, which is an important issue, if a parent requests an independent review of an exclusion decision it is important that independent review panel members have the capacity to perform their role effectively. As is currently the case, local authorities and academies will be required to provide training to panel members every two years on specific areas set out in regulations. No individual will be permitted to be a panel member without receiving this training, which must cover issues such as the legislative requirements in relation to exclusions; the need for the panel to observe procedural fairness and the rules of natural justice; and the duties of the review panel under the Equality Act 2010.
I understand the point made by my noble friend about the quality of training that some local authorities may provide or commission, but I am not sure that we would want to introduce a requirement for independence which would prevent a local authority which can deliver high-quality training itself from doing so. We want to draw on best practice in training for other bodies that make important administrative decisions. To that end, we are talking to the Ministry of Justice about what more we can do to support this training to ensure that local authorities are clear about the new requirements and are able to develop or commission effective training.
“( ) requiring the responsible body to consider a report about the pupil from the special educational needs co-ordinator when considering whether a pupil should be excluded;”
Baroness Hughes of Stretford
My Lords, I gave notice that if the noble Lord, Lord Low, withdrew his amendment, I would take the opinion of the House on this one, which has the same aim. It would bring forward to an earlier stage in the process a requirement that the governing body seeks the views and assessment of a special needs expert. It is in the interests of children to bring that forward earlier in the process. I beg to move.